Motion to Set Aside / Vacate Default Judgment (Debt) - Rhode Island

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

[____________] COUNTY — [☐ SUPERIOR COURT / ☐ DISTRICT COURT]

C.A. No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Super. R. Civ. P. 55(c) and 60(b) (or Dist. R. Civ. P. 55(c) and 60(b))

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and respectfully moves this Court to set aside and vacate the default judgment entered against Defendant in this action on [__/__/____], pursuant to R.I. Super. R. Civ. P. 55(c) and 60(b). In support, Defendant states as follows:

I. INTRODUCTION AND BASIS FOR RELIEF

1. This is a debt-collection action in which Plaintiff [☐ is a debt buyer / ☐ is a collection agency / ☐ claims to be the original creditor] seeking to collect an alleged consumer debt. A default judgment was entered against Defendant on [__/__/____] in the amount of $[____________], plus [interest, costs, and/or fees].

2. Defendant did not receive proper notice of this action and/or had good cause for not responding, has one or more meritorious defenses to the alleged debt, and brings this motion promptly upon learning of the judgment. For the reasons set forth below, the default judgment should be set aside.

3. Rhode Island policy strongly favors the resolution of disputes on the merits, and motions to set aside default judgments are addressed to the sound discretion of the trial court, which should be exercised in light of that preference.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Date of judgment. The default judgment was entered on [__/__/____].

5. Amount. The judgment is in the amount of $[____________], consisting of [principal $[____], interest $[____], attorney's fees $[____], court costs $[____]].

6. How Defendant learned of the judgment. Defendant first learned of the default judgment on [__/__/____] by the following means:

☐ A wage garnishment / attachment served on Defendant's employer
☐ A bank attachment / garnishment of Defendant's account
☐ A post-judgment writ, examination, or other process
☐ A credit report entry
☐ Other: [____________]

7. Defendant files this motion [____] days after first learning of the judgment, which is within a reasonable time and within the applicable limit under [☐ Rule 60(b) (within one year for reasons (1)–(3)) / ☐ Rule 60(b)(4) (void judgment — reasonable time only)].

III. LEGAL STANDARD

8. Rule 55(c) — good cause; broad discretion. Under R.I. Super. R. Civ. P. 55(c), "[f]or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Rhode Island courts apply Rule 55(c) liberally in favor of trial on the merits.

9. Rule 60(b) — grounds. R.I. Super. R. Civ. P. 60(b) permits the Court to relieve a party from a final judgment for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from the operation of the judgment.

10. Meritorious defense. In addition to good cause / a Rule 60(b) ground, Rhode Island requires the movant to demonstrate that it has a meritorious defense to the underlying claim, so that setting aside the default would not be a futile act. Defendant's defenses are set out in Section V and the attached Affidavit.

11. A judgment without valid service is void. A court acquires personal jurisdiction only through valid service of process. A default judgment entered when the defendant was not properly served is void for lack of personal jurisdiction and is due to be set aside under Rule 60(b)(4); a Rule 60(b)(4) motion is subject only to the "reasonable time" standard and is not limited to one year. R.I. Super. R. Civ. P. 4, 12(b)(2), (4), (5).

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service of process; lack of personal jurisdiction. Defendant was never validly served with the summons and complaint as required by R.I. Super. R. Civ. P. 4. Specifically: [describe — e.g., "Defendant did not live at the address where service was attempted," "the return reflects service on a person not residing with Defendant or not authorized to accept it," "service was by publication/mail and Defendant never received it," "Defendant first learned of the suit only through the attachment/garnishment"]. Because the Court lacked personal jurisdiction, the judgment is void and must be vacated. R.I. Super. R. Civ. P. 60(b)(4).

☐ B. Excusable neglect, mistake, surprise, or inadvertence. Defendant's failure to respond was the result of excusable neglect and not culpable conduct, in that: [describe — e.g., "Defendant was hospitalized," "the papers were misdelivered or received late," "Defendant reasonably believed the matter had been disputed/resolved with the collector," "Defendant did not understand the deadline"]. R.I. Super. R. Civ. P. 55(c); 60(b)(1).

☐ C. Fraud, misrepresentation, or misconduct. The judgment was obtained through fraud, misrepresentation, or misconduct by Plaintiff or its agents, including [describe — e.g., "a false affidavit or 'sewer service' return of service," "misrepresentation of the amount owed," "concealment of the lack of any assignment"]. R.I. Super. R. Civ. P. 60(b)(3).

☐ D. Newly discovered evidence. Defendant has discovered evidence that could not, with reasonable diligence, have been discovered earlier, namely: [describe]. R.I. Super. R. Civ. P. 60(b)(2).

☐ E. Defendant has a meritorious defense (see Section V).

V. DEFENDANT HAS A MERITORIOUS DEFENSE

12. Defendant is prepared to present one or more plausible, fact-supported defenses that, if proven, would constitute a complete defense to Plaintiff's claim. Defendant asserts the following meritorious defense(s):

☐ Statute of limitations. The alleged debt is time-barred. Under Rhode Island law, the general limitation period for civil actions, including most contract and account claims, is ten (10) years (R.I. Gen. Laws § 9-1-13(a)); however, an action for breach of a contract for sale of goods under the Uniform Commercial Code must be commenced within four (4) years after accrual (R.I. Gen. Laws § 6A-2-725). The last payment/activity on the account occurred on or about [__/__/____], more than the applicable limitations period before suit was filed. [Verify characterization and accrual; a choice-of-law clause may import another state's period.]

☐ Not the debtor / mistaken identity / identity theft. Defendant is not the person who incurred the alleged debt and/or the account was opened or used as a result of identity theft. [Describe; attach FTC Identity Theft Report / police report as Exhibit [__].]

☐ Wrong amount. The amount of the judgment is incorrect, inflated, or includes unauthorized interest, fees, or charges. The correct balance, if any, is $[____________].

☐ Debt paid, settled, or discharged. The alleged debt was paid, settled, or discharged (including by discharge in bankruptcy on [__/__/____], Case No. [____________]) and is not owed.

☐ Plaintiff lacks standing / no chain of assignment. Plaintiff is not the original creditor and has not proven a complete, unbroken chain of assignment showing it owns Defendant's specific account. Plaintiff is not the real party in interest.

☐ Potential separate FDCPA claim—not by itself a defense that the debt is invalid. If a qualifying debt collector failed to provide the notice or verification required by 15 U.S.C. § 1692g, Defendant may have a separate civil claim under 15 U.S.C. § 1692k. A formal pleading is not an “initial communication” under § 1692g(d). Plead such a claim only if procedurally permitted, and evaluate any state-law issue separately.

☐ Other meritorious defense: [____________]

13. These defenses are substantiated by the facts set forth in Defendant's Affidavit, below, and the attached exhibits, and are sufficient to warrant submission of the case to a fact-finder.

VI. NO PREJUDICE TO PLAINTIFF; DEFENDANT ACTED PROMPTLY

14. No unfair prejudice. Setting aside the judgment will not unfairly prejudice Plaintiff, which retains its evidence and its claim; only the opportunity for a one-sided judgment is lost. Defendant is prepared to proceed promptly.

15. Defendant acted promptly and in good faith. Defendant's failure to respond was not willful, intentional, or in bad faith. As set forth above and in the attached Affidavit, it resulted from [lack of valid service / excusable neglect], and Defendant moved to vacate promptly after learning of the judgment.

VII. DEFENDANT'S AFFIDAVIT

STATE OF RHODE ISLAND )
COUNTY OF [____________] )

I, [____________], being first duly sworn, depose and state as follows:

1. I am the Defendant in this action. I am over the age of eighteen (18) and competent to testify, and I make this affidavit on personal knowledge.

2. I was never properly served with the summons and complaint in this case. [State the facts: where you lived on the date of attempted service; whether you received the papers; who, if anyone, was served; how you actually learned of the lawsuit.]

3. I first learned that a judgment had been entered against me on [__/__/____], when [describe — e.g., "my wages were attached" / "my bank account was garnished"].

4. I have a meritorious defense to Plaintiff's claim, namely: [state the facts supporting the defense(s) checked above — e.g., the date of last payment, that the account is not mine, that the amount is wrong, that the debt was discharged in bankruptcy].

5. My failure to respond to the complaint was not intentional or the result of any disregard of this Court. [State the facts establishing excusable neglect or lack of service.]

6. I respectfully ask the Court to set aside the default judgment, allow me to defend this case on the merits, and stay any collection efforts in the meantime.

_______________________________________
[____________], Defendant

Subscribed and sworn to before me this [____] day of [____________], 20[____].

_______________________________________
Notary Public
My commission expires: [__/__/____]

VIII. REQUEST TO STAY EXECUTION AND GARNISHMENT

16. Defendant requests that the Court stay execution on the judgment — including any wage attachment, bank attachment, garnishment, levy, or other post-judgment process — pending the Court's ruling on this motion. R.I. Super. R. Civ. P. 62. Absent a stay, Defendant faces immediate and irreparable harm from the attachment of wages or funds that may be exempt and that Defendant needs for basic living expenses, even though the underlying judgment is subject to being vacated.

17. Defendant further requests that any funds already attached, garnished, or levied be held by the garnishee or the Court, and not disbursed to Plaintiff, until this motion is decided.

IX. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE and VACATE the default judgment entered on [__/__/____];

B. STAY all execution, attachment, garnishment, levy, and other post-judgment collection proceedings pending the Court's ruling (R.I. Super. R. Civ. P. 62), and order that any funds already attached, garnished, or levied be held and not disbursed;

C. QUASH any outstanding writ of attachment, garnishment, or execution issued on the judgment;

D. GRANT Defendant leave to file an Answer and defend this action on the merits, with the accompanying [proposed] Answer deemed filed as of the date of the order;

E. Set this matter for a hearing if the Court deems one necessary; and

F. Grant such other and further relief as the Court deems just and proper.

X. PROPOSED ORDER

A proposed Order Setting Aside Default Judgment is submitted contemporaneously with this motion for the Court's consideration.

[PROPOSED] ORDER

This matter came before the Court on Defendant's Motion to Set Aside / Vacate Default Judgment. Having considered the motion, the supporting affidavit, any response, and the applicable law — including R.I. Super. R. Civ. P. 55(c) and 60(b) — the Court finds good cause and that the motion should be GRANTED.

It is therefore ORDERED that the default judgment entered on [__/__/____] is SET ASIDE and VACATED; all attachments, garnishments, levies, and executions on that judgment are QUASHED and STAYED, and any attached or garnished funds shall be returned to Defendant; and Defendant is granted leave to file an Answer within [____] days of this Order.

ENTER:

_________________________________
Associate Justice / Judge
Dated: [__/__/____]

XI. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
R.I. Bar No. (if attorney): [____________]
[Street Address]
[City], Rhode Island [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

XII. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________], 20[____], I served a true and correct copy of the foregoing Defendant's Motion to Set Aside / Vacate Default Judgment, the supporting Affidavit, and the proposed Order upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with R.I. Super. R. Civ. P. 5, by the following method:

☐ Rhode Island Judiciary Electronic Filing System (EFS) (notice to all counsel of record)
☐ U.S. First-Class Mail, postage prepaid
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

RHODE ISLAND PRACTICE NOTES

• Deadline: Rule 55(c) lets the court set aside an entry of default for good cause and a default judgment "in accordance with Rule 60(b)." Under Rule 60(b), the motion must be made within a reasonable time, and for reasons (1)–(3) NOT MORE THAN ONE (1) YEAR after entry. A motion under Rule 60(b)(4) (void judgment) is subject only to the "reasonable time" standard. Calendar immediately.
• Meritorious defense required: In addition to good cause / a Rule 60(b) ground, the movant must show a meritorious defense so that vacatur is not a futile act. Attach the proposed Answer.
• Void for defective service: A judgment entered without valid service is void for lack of personal jurisdiction (Rule 60(b)(4)) and is not limited to the one-year period. Common in debt cases where the consumer first learns of the suit through an attachment or garnishment ("sewer service").
• Stay collection: Request a stay of execution/attachment under Rule 62 with the motion; ask that attached/garnished funds be held pending the ruling. Identify and claim applicable exemptions.
• Statute of limitations on debt: general civil/contract actions — 10 years (R.I. Gen. Laws § 9-1-13(a)); UCC contracts for the sale of goods — 4 years (R.I. Gen. Laws § 6A-2-725). Determine the proper characterization and the accrual/last-payment date before relying.
• Superior vs. District Court: the Superior and District Court Rules of Civil Procedure are parallel; cite the set matching the court that entered the judgment.

Sources and References

• Rhode Island Superior Court Rules of Civil Procedure: https://www.courts.ri.gov/Courts/superiorcourt/Pages/rules.aspx
• R.I. Super. R. Civ. P. 55(c) — setting aside default / default judgment for good cause.
• R.I. Super. R. Civ. P. 60(b) — relief from judgment (mistake/excusable neglect, newly discovered evidence, fraud, void judgment, satisfaction, any other reason).
• R.I. Super. R. Civ. P. 4 — process; service of the summons and complaint.
• R.I. Super. R. Civ. P. 62 — stay of proceedings to enforce a judgment.
• R.I. Gen. Laws § 9-1-13 — general 10-year limitation: https://webserver.rilegislature.gov/Statutes/TITLE9/9-1/9-1-13.htm
• R.I. Gen. Laws § 6A-2-725 — UCC sale of goods (4 years): https://law.justia.com/codes/rhode-island/title-6a/chapter-6a-2/part-7/section-6a-2-725/
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/